GILLETTE, J.,
Pro Tempore.
This was an action for slander. Plaintiffs, husband and wife, operate an automobile repair business. They alleged that defendant’s agent, a claims estimator, told a claimant that defendant company had experienced a number of problems with plaintiffs’ shop, that plaintiffs’ work "was not all that good,” and that plaintiffs’ prices were high. Defendant filed a general denial, and, thereafter, a motion for summary judgment pursuant to ORS 18.105(3) and (4).
Both sides filed affidavits. The trial court entered judgment for defendant. Plaintiffs appeal, assigning as error (1) the trial court’s consideration of the defense of truth, when that defense had not been affirmatively pleaded; (2) the trial court’s application of the doctrine of
Gertz v. Robert Welch, Inc.
in a non-media case such as this one; and (3) the granting of summary judgment when, plaintiffs allege, there existed a material issue of fact with respect to the truth or falsity of defendant’s statements. We reverse.
At the time of this action, the defendant was in the automobile insurance business, and operated a drive-in claims center in Eugene, Oregon. Frequently, persons making claims against the company for damage to their automobiles, whether as claimants or as insureds, would drive their vehicle to defendant’s claims center for inspection and estimate of damages.
On January 3, 1975, one Paul Ehrhardt drove his vehicle to the defendant’s Eugene claims office. During the course of a discussion concerning body and fender repair in general between Mr. Forcia, who was defendant’s agent, and Mr. Ehrhardt, Forcia allegedly told Ehrhardt the following: "We have had a lot of problems with [plaintiffs’ firm] and their work is not all that good, and their prices are high.”
As a result of the above statements, plaintiffs brought the present slander action against the defendant, seeking $500,000 general damages and $500,000 punitive damages. Subsequent to a general denial answer, the defendant sought and received a summary judgment on the ground that the statements attributed to the defendant were true and that there was no issue of fact thereon.
1.
Whether truth as a defense must be affirmatively pleaded.
Plaintiff first raises a threshhold issue: defendant here filed a general denial only; defendant’s affidavits are designed to establish truth as a defense. May truth as a defense to slander be proved if it has not been specially pleaded?
We hold that it may, in the peculiar circumstances which arise as a result of the use of motions for summary judgment.
The general rule in Oregon has been said to be that truth as an affirmative defense to libel or slander must be pleaded and proved.
"* * * Truth is a defense and must be alleged by the defendant,
Thomas v. Bowen,
[29 Or 258, 45 P 768 (1896)
* * *. The defendant has the burden of establishing his plea with evidence,
Grubb v. Johnson,
205 Or 624, 289 P2d 1067,
Woolley v. Hiner,
164 Or 161, 100 P2d 608. The purpose of requiring parties to set forth their facts in the pleadings is to bring the facts to light * *
Fowler v. Donnelly,
225 Or 287, 292, 358 P2d 485 (1960).
Interestingly, however, neither
Fowler
nor
Thomas v. Bowen,
which it cites, stands for the proposition asserted because the question of what a
defendantm.
a defamation case was required to plead and prove was not at issue in either case. In
Fowler,
the issue was whether the
plaintiff
in a defamation case was required to allege the falsity of the statements complained of. This court, two justices dissenting, held that plaintiffs complaint
did
require such an allegation, and that a demurrer would lie if the complaint did not allege falsity. The comment concerning the
defendant’s
burden was a
dictum.
In
Thomas,
the concern was with the adequacy of plaintiffs proof to survive a motion for nonsuit. This court held that, although plaintiff had alleged falsity, she did not have to prove the falsity by testimony because, due to their nature, the statements made by defendants—they charged she had committed a crime when she merely stood accused of it—were presumed to be false and were thus libelous
per se.
By way of elaboration, this court did say,
"* * * So, where the publication charges an indictable offense, the presumption of innocence is
prima facie
evidence of falsity and want of probable cause, and sufficient to compel the defendants to allege and prove the truth of the charge.”
However, this last statement is again a
dictum,
because the question of the sufficiency of plaintiff’s proof did not require a discussion of what pleading defendants were required to file.
We have found no case in Oregon in which the
Thomas/Fowler
dictum has been elevated to a holding.
We are not here required to do so, because the special circumstances attendant upon motions for summary judgment suggest a different rule in any event. The summary judgment statute permits a motion for summary judgment to be filed at virtually any stage of the pleadings. ORS 18.105(1) and (2).
It would be anomalous for us to hold that a defendant in a slander action may or may not be able to file affidavits showing the truth of the statements attributed to him, depending upon how hurriedly the other party moved for summary judgment. Absent any showing of surprise or prejudice—and none appears in this record—we hold defendant was entitled to raise truth as a defense.
2.
Whether Gertz v. Robert Welch, Inc. applies to a nonmedia defendant.
In conjunction with its claim that the trial court erred in granting defendant’s motion for summary
judgment, plaintiff argues that the trial court improperly applied the U.S. Supreme Court’s ruling in
Gertz v. Robert Welch, Inc., supra,
to the instant case.
Gertz
held specifically that the First Amendment to the Constitution does not permit the imposition of "liability without fault” on a "publisher or broadcaster of defamatory falsehood injurious to a private individual.”
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GILLETTE, J.,
Pro Tempore.
This was an action for slander. Plaintiffs, husband and wife, operate an automobile repair business. They alleged that defendant’s agent, a claims estimator, told a claimant that defendant company had experienced a number of problems with plaintiffs’ shop, that plaintiffs’ work "was not all that good,” and that plaintiffs’ prices were high. Defendant filed a general denial, and, thereafter, a motion for summary judgment pursuant to ORS 18.105(3) and (4).
Both sides filed affidavits. The trial court entered judgment for defendant. Plaintiffs appeal, assigning as error (1) the trial court’s consideration of the defense of truth, when that defense had not been affirmatively pleaded; (2) the trial court’s application of the doctrine of
Gertz v. Robert Welch, Inc.
in a non-media case such as this one; and (3) the granting of summary judgment when, plaintiffs allege, there existed a material issue of fact with respect to the truth or falsity of defendant’s statements. We reverse.
At the time of this action, the defendant was in the automobile insurance business, and operated a drive-in claims center in Eugene, Oregon. Frequently, persons making claims against the company for damage to their automobiles, whether as claimants or as insureds, would drive their vehicle to defendant’s claims center for inspection and estimate of damages.
On January 3, 1975, one Paul Ehrhardt drove his vehicle to the defendant’s Eugene claims office. During the course of a discussion concerning body and fender repair in general between Mr. Forcia, who was defendant’s agent, and Mr. Ehrhardt, Forcia allegedly told Ehrhardt the following: "We have had a lot of problems with [plaintiffs’ firm] and their work is not all that good, and their prices are high.”
As a result of the above statements, plaintiffs brought the present slander action against the defendant, seeking $500,000 general damages and $500,000 punitive damages. Subsequent to a general denial answer, the defendant sought and received a summary judgment on the ground that the statements attributed to the defendant were true and that there was no issue of fact thereon.
1.
Whether truth as a defense must be affirmatively pleaded.
Plaintiff first raises a threshhold issue: defendant here filed a general denial only; defendant’s affidavits are designed to establish truth as a defense. May truth as a defense to slander be proved if it has not been specially pleaded?
We hold that it may, in the peculiar circumstances which arise as a result of the use of motions for summary judgment.
The general rule in Oregon has been said to be that truth as an affirmative defense to libel or slander must be pleaded and proved.
"* * * Truth is a defense and must be alleged by the defendant,
Thomas v. Bowen,
[29 Or 258, 45 P 768 (1896)
* * *. The defendant has the burden of establishing his plea with evidence,
Grubb v. Johnson,
205 Or 624, 289 P2d 1067,
Woolley v. Hiner,
164 Or 161, 100 P2d 608. The purpose of requiring parties to set forth their facts in the pleadings is to bring the facts to light * *
Fowler v. Donnelly,
225 Or 287, 292, 358 P2d 485 (1960).
Interestingly, however, neither
Fowler
nor
Thomas v. Bowen,
which it cites, stands for the proposition asserted because the question of what a
defendantm.
a defamation case was required to plead and prove was not at issue in either case. In
Fowler,
the issue was whether the
plaintiff
in a defamation case was required to allege the falsity of the statements complained of. This court, two justices dissenting, held that plaintiffs complaint
did
require such an allegation, and that a demurrer would lie if the complaint did not allege falsity. The comment concerning the
defendant’s
burden was a
dictum.
In
Thomas,
the concern was with the adequacy of plaintiffs proof to survive a motion for nonsuit. This court held that, although plaintiff had alleged falsity, she did not have to prove the falsity by testimony because, due to their nature, the statements made by defendants—they charged she had committed a crime when she merely stood accused of it—were presumed to be false and were thus libelous
per se.
By way of elaboration, this court did say,
"* * * So, where the publication charges an indictable offense, the presumption of innocence is
prima facie
evidence of falsity and want of probable cause, and sufficient to compel the defendants to allege and prove the truth of the charge.”
However, this last statement is again a
dictum,
because the question of the sufficiency of plaintiff’s proof did not require a discussion of what pleading defendants were required to file.
We have found no case in Oregon in which the
Thomas/Fowler
dictum has been elevated to a holding.
We are not here required to do so, because the special circumstances attendant upon motions for summary judgment suggest a different rule in any event. The summary judgment statute permits a motion for summary judgment to be filed at virtually any stage of the pleadings. ORS 18.105(1) and (2).
It would be anomalous for us to hold that a defendant in a slander action may or may not be able to file affidavits showing the truth of the statements attributed to him, depending upon how hurriedly the other party moved for summary judgment. Absent any showing of surprise or prejudice—and none appears in this record—we hold defendant was entitled to raise truth as a defense.
2.
Whether Gertz v. Robert Welch, Inc. applies to a nonmedia defendant.
In conjunction with its claim that the trial court erred in granting defendant’s motion for summary
judgment, plaintiff argues that the trial court improperly applied the U.S. Supreme Court’s ruling in
Gertz v. Robert Welch, Inc., supra,
to the instant case.
Gertz
held specifically that the First Amendment to the Constitution does not permit the imposition of "liability without fault” on a "publisher or broadcaster of defamatory falsehood injurious to a private individual.”
In a recent case before this court, we indicated that this means "there would at least have to be evidence of simple negligence on the part of the publisher or broadcaster in determining the falsity of the defamatory material before a recovery may be had.”
Harley-Davidson Motorsports, Inc. v. Markley,
279 Or 361, 568 P2d 1359 (1977).
In the case before us, the trial court was of the opinion that the rule in
Gertz
applied "with respect to the requirements that the plaintiffs must prove the falsity of the alleged defamatory statements in order to recover against the defendant.” The court then entered an order for continuance to give plaintiffs the opportunity to present evidence of the falsity of the alleged defamatory statements. Plaintiffs declined to present additional evidence. Based upon that order, the trial court entered a summary judgment for the defendant.
Plaintiffs urge that
Gertz
was never intended to apply to private slander situations or cases involving nonmedia defendants. Defendant urges that the principle of
Gertz
should apply to media and nonmedia cases alike.
Gertz
itself involved a media defendant; the Supreme Court has not yet seen fit to extend its principle. Until it does so, we are not inclined to independently follow that path under the First Amendment.
Harley-Davidson Motorsports, Inc., v.
Markely, supra,
279 Or at 371, 372. Neither has defendant invoked Art I, § 8 of the Oregon Constitution. As we have elsewhere noted,
"Defendants make no contention that aside from the authority of
Gertz,
free speech interests, other than the interest in democratic dialogue, outweigh an interest in non-compensatory damages; we therefore do not have to meet that contention.
"On neither issue of actual or punitive damages have defendants raised any point under the Oregon Constitution, and we therefore have not considered its application.”
Harley-Davidson v. Markley,
279 Or 361, 372.
See also Davidson v. Rogers,
281 Or 219 (concurring opinion at 222).
Plaintiffs’ argument is correct: the trial court improperly applied
Gertz
to this case in granting defendant’s motion for summary judgment.
3.
Whether a material issue of fact exists such that an order granting summary judgment was improper.
ORS 18.105(3) authorizes summary judgments where the pleadings, depositions and affidavits "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Defendant moved for a summary judgment and offered supporting affidavits from customers of plaintiffs, which stated in effect that plaintiffs’ work was substandard. Plaintiffs, on the other hand, offered the deposition of Mr. Forcia—defendant’s own agent and the alleged source of the slanderous statements—in which Forcia stated that he did not make the alleged slanderous statement to Mr. Ehrhardt, nor was he aware of any complaints concerning plaintiffs’ work. Forcia also indicated he had no reason to believe that plaintiffs’ work was not of good quality nor particularly high priced.
Where Forcia’s deposition creates a question whether the alleged slanderous statements were made at all or, if made, were false, are obvious unresolved
material issues of fact. The trial judge improperly granted defendant’s motion for summary judgment.
Reversed.